196 thoughts on “Patentlyo Bits and Bytes by Anthony McCain”

Oy. It’s always cringe-worthy when the CAFC bases a decision (even partially) on an assertion that is plainly false, on its face. The case in question is Synopsis v. Mentor Graphics and the false assertion is the following:

The point of the invention is to enable designers to more easily debug the source code based on testing of the optimized circuits. Developers could not do this if the instrumentation signal were indicative of execution status only some of the time [emphasis added]

In fact, in nearly ever endeavor, some useful information is better than none. The fact that an instrument does not provide the desired information in every instance of operation or as applied to every possible contingency is nevertheless perfectly consistent with a task (e.g., debugging a program) becoming “easier” as a result of the instrument’s use.

“The point of the invention is to enable designers to more easily debug the source code based on testing of the optimized circuits. Developers could not do this if the instrumentation signal were indicative of execution status only some of the time [emphasis added]”

Its clear that all the court is saying is that Developers could not debug MORE EASILY if the instrumentation signal were indicative of execution status only some of the time.

The part that isn’t true, as I already explained in detail in my original comment.

all the court is saying

I know exactly what the court is saying. Th problem is that “more easily” is a quintessential example of a relative term.

Let me help you with a simple example. I can maneuver my car “more easily” through an obstacle course on a downhill slope with brakes that only work half the time versus having no breaks at all. Pretty simple concept.

“Let me help you with a simple example. I can maneuver my car “more easily” through an obstacle course on a downhill slope with brakes that only work half the time versus having no breaks at all. Pretty simple concept.”

Yup. and the assertion is true too. So again I ask you the simple question, where is the falsehood?

Why is there a problem with a relative term? Do you not understand what more easily means? Do you not understand that more easily is relative to without the invention (all other things being equal)?

I think that you have taken that out of context and tried to make it an “all or nothing” thing instead of it being an improvement type patent thing.

But that’s just a surface read here based on the words you have chosen to call a false assertion in your immediate post at 13 above – which, as Les points out, is not false at all) – fair notice: I have not read the case itself, so I am commenting on your post 13 directly. If you meant to say something else at 13, that might be a different story, but this one (at 13) is just not correct.

“If your claim’s result is information that is useful without human consumption, or useful information that is useful prior to human consumption, have at it, so long as the requirements for patentability are met.

The most basic possible definition of “abstract” is information consumed by a person.”

Even if your definition of “Abstract” were correct, that has no bearing on whether a claimed method for correcting Hubble images is an abstract idea and I do not understand why dependent claim that recites displaying the information that depends from an allowable (in your view) claim should not be eligible.

I would also be interested in how you would respond to those who take the word “uesful” in 101 very seriously and would allege that without the displaying the information in memory is not useful and therefore the method is not useful.

The real way to think of this is the brain is just an information processor. Math is nothing but our methods for solving problems. Nothing special about math or physical laws. Not in the least. All of this are heuristics for us to try to build models of the world and manipulate the physical world.

The information processing machines are doing the same thing. All math should be eligible for patentability within the context of a machine. We are building machines that process information that take time, energy, and space. The conservation of information is the most important law of physics.

In Deener a method of processing grain could be performed by a human body, but that did not make the method unpatentable. The fact that a human can perform some of these methods is meaningless (except maybe to 103). The machine is automating the processes.

Plus, the whole notion that information processing machines that interact with and control human behavior should not be eligible is from an ancient ear before information processing machines. Machines that control human behavior should certainly be eligible because they are machines (duh? Ginsburg you science and innovation illiterate fossil with an ego the size of Alaska.)

That is reality. We have a science illiterate judiciary (thanks Obama and Clinton.) We have most of the Fed. Cir. judges appointed by Google. Use your own brain to understand these things. The selection of the Fed. Cir. was purchased by Google. (And Lemley fabricates nonsense. His functional claim paper is a joke. No practical examples, which would illustrate that he has no idea what he is talking about or does and is unethical.)

“So, it was a tool only of the information processing brain and not the information processing machines.”

Another pleasant night at the Holiday Inn for Mr. Snyder.

Manufactures that are machine components satisfy the category aspect of 101 every bit as do the larger machines themselves.

Your use here of “brain” is nothing but an anthropomorphication, and is known to those Ordinary Persons Having Skill In The Art to NOT be the human brain.

There is a VERY clear distinction that it would be in everyone’s best interest to maintain. I (once again) invite Prof. Crouch to write an article (hint: great teaching moment) to explore this difference and put to rest all of the attempted obfuscations that surround the mental steps aspects in patent law doctrines.

“I would also be interested in how you would respond to those who take the word “uesful” in 101 very seriously and would allege that without the displaying the information in memory is not useful and therefore the method is not useful”

I think I covered this in another comment, but I’ll do it again.

A sharpened image is intrinsically more useful- just as a sharpened knife is intrinsically more useful. If you have a new, no-obvious, fully described method that sharpens a knife, you don’t need any claim language describing the uses to which the sharpened knife will be put to clear the utility bar.

But MM et al. would have a conniption if you tried that with sharpened data left sitting in a draw. Well, Ned et al…. MM would have the conniption just because “do it on a computer,” let alone leaving the resulting data in memory.

People from all sides are going to have to give a little to move the system forward into the information age.

The travesty of what we have now is intolerable, and nothing in the AIA, any proposed reforms I’ve seen, or the current Alice regime is really fixing it.

We have an exception for abstract ideas. Here is a bright line test for abstract ideas that meets the linguistic, statutory, and philosophical purposes of the exception for non-physical inventions that produce nothing but information.

The clear distinction is whether or not the step involving some “human consumption” is integrated into the claim or is merely an aggregated element.

Our Holiday Inn guest just does not realize that claim elements of the type that involve human interaction (even human interaction “of the mind,” are perfectly allowable under the law as written by Congress under the Claim as a Whole doctrine (when there is no “goalpost moving” and attempt to move a claim that is NOT totally in the mind into a claim that IS totally in the mind.

As has been demonstrated with claims that are mere aggregations that have NO such elements, such claims ALREADY f a i l; and it is only the most mundane takeaway to stretch this concept to include claims with elements of [new thought] and pretend that it is the element of [new thought] that drives the doctrine (hint: it is not).

And we do not even have to get into the purposeful obfuscation of some who want to twist what is clearly (to a Person Having Ordinary Skill In The Art) a machine or manufacture attribute into some type of human being attribute (my favorite word: anthropomorphication). A blog interested in inte11ectual honesty and true dialogue simply would not put up with those types of shenanigans.

2) anthropomorphication is possible in real-life and more possible in more ways daily

3) I deal with aggregation in the paper- steps toward the result that happen in the mind are just fine- expected even- but if the construed result of the method is information, and the consumption by a person of that information comprises the infringement, its not eligible.

4) The self-trained have moved the world in the past. I believe the Wright Brothers stayed at the Holiday Inn too- and Abe Lincoln. And Steve Jobs. And many many others. Its a venerable institution.

2) you are showing that you are not understanding the meaning of the word and the very real difference between human brain and machine brain and that difference as it plays out in the realm of law (once again, your lack of Sun Tzu is showing)

3) sorry, I haven’t bothered wading into the paper after finding 20+ mistakes in the Abstract (and I note that you STILL haven’t answered my follow-up questions to you about your paper. I would suggest that you answer those questions before you try to use that paper as an type of response here).

4) Nothing at all wrong with self-trained. You are slipping into your logical fallacy that such is somehow what I am against. Let me be perfectly clear: I am NOT against those who are self trained. I am against those who ar self-trained and hold onto delusions because they are attempting to fit the training into their PRECONCEIVED notions and desired ends. There is a WORLD of difference between these two views. You are NOT anywhere close to being a Wright Brothers or Abe Lincoln. And while such may indeed have stayed at the (equivalent) of the “venerable institution” of the Holiday Inn, the meaning of that phrase is decidedly different and not up to you to reset.

OK boss. You are wrong, I am Abe Lincoln reincarnated as the Wright Brothers reincarnated as Martin Snyder, placed on this Earth to illustrate the circular “reasoning”, cascading pedantry, and all around unpleasantness of a self-appointed website policeperson who believes that Sun Tzu offers insight to the state of the art in artificial intelligence, and who won’t read proffered arguments unless satisfied that the provenance of the ideas accord with his (her?) bizarrely inflated estimation of his (her?) own eminence.

Awesome. Maybe you can answer the question I asked about enforceability then. When you answer, try to think about some hypothetical scenarios that might be presented to you should your answer appear to be one of those reflexive thoughtless ones that sometimes drivel out.

There is no “problem” that Apple created. They store fingerprint data in their button. If the phone is stolen, someone can replace the button and get access to all of your data and use your credit card. Apple wants to prevent that.

And why are we discussing a patent that doesn’t exist?

I realize you’re anti-“anyone who makes anything with processors”, but this is a bit extreme even for you.

Are you seriously asking if an oil company could patent a method of cleaning up an oil spill? Of course then can. Who else has the resources and motivation to develop such a method?

Are you seriously asking if a space company could patent a method jettisoning astronauts from a malfunctioning rocketship? Of course then can. Who else has the resources and motivation to develop such a method?

Are you seriously asking if a aerospace company could patent a method jettisoning fighter pilots from F15 in a flat spin? Of course then can. Who else has the resources and motivation to develop such a method?

Somehow Malcolm wants to focus on the “creating a problem” aspect as if that nullified the enforceability of a patent on a method of resolving the made problem.

Or maybe, he wants to play Br’er Rabbit and couch his question in ambiguity with the hope of receiving an answer that ALL methods somehow “must be” captured in the patented method, since the holder of that patented method created the issue in the first place.

Clearly, the direct answer of “yes, you can enforce your patent against others engaged in the resolution of the problem” implies that the question is geared to those others using the patented method, and not a different (perhaps patentable in itself, but not necessarily so). And just as clearly, the mere fact of someone trying to solve a problem you created does not necessarily mean that your valid patent covers their efforts.

But either way, the fact that you were the one that created the problem in the first place is absolutely meaningless to the question.

I think that he is perhaps confused with gen eral tort principles of unjust enrichment. There is a different legal issue if one creates a problem and inflicts that problem onto others. That is not a patent law question.

if Alice is applied to mechanical inventions that they all can be invalided under Alice–if the judge feels like it.

This is completely wrong.

As was predicted and explained years ago, mechanical inventions that are claimed in objective structural terms that distinguish them from the structures in the prior art are immune from eligiblity challenges (absent some other 101 issue that only an incompetent attorney would introduce into the claim). That’s why zero such claims have been found ineligible under Alice.

Les writes: That’s not really the issue.

It absolutely is the issue and Les is a rid0nculous person for suggesting otherwise. The Alice decision is focused on the ineligibility of logical data processing steps in the context of general purpose computers which exist to carry out logical data processing steps.

Can you patent a non-obvious and structurally distinquished computing device? Of course.

“It absolutely is the issue and Les is a rid0nculous person for suggesting otherwise. The Alice decision is focused on the ineligibility of logical data processing steps in the context of general purpose computers which exist to carry out logical data processing steps.”

That may have been what the subject claims were about. It is not what the test promulgated in Alice is about.

If Alice can be applied to new uses of known computers, and if new uses of known computers should not be patent eligible, then what about new uses of known chemical reaction vessels.

In 1958, he addressed a problem faced by construction workers and home-repair amateurs alike: how to insert a screw securely into plaster or drywall. He devised a nylon plug with a split tip to be inserted into a drilled hole. As the screw turned, the plug prevented it from dislodging the plaster. As the screw advanced toward the tip, the anchor expanded, pressing tightly against the hole. Two anti-rotation fins on the plug wedged into the plaster, keeping the anchor securely in place.
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This would also easily be invalidated under Alice and under the 2nd year engineering students can do it in a weekend test (which is akin to a witch test.)

My hunch is that if we were to review them all we would be hard-pressed to find one that could be said to claim an abstract idea. Given how many patents are directed to one or another feature of a trans-luminal expansible stent, I see no difficulty collecting about a thousand patents on this or that constructional feature of a plug to anchor a screw in a substrate.

This “do it in a week-end” test you mention, Night. Does the USPTO use it yet?

Max, you are well aware that the point is that if Alice is applied to mechanical inventions that they all can be invalided under Alice–if the judge feels like it. But, nice try.

The “do it in a week-end” test is not used expressly, but it has influenced the dialogue. As well as a human “could” do it (given one trillion years). And it evinces such an ignorance of innovation that anyone that would embrace this statement is incompetent and should be removed from any responsibility they have regarding innovation.

That’s not really the issue. The issue is, if Alice is appropriate, it should be appropriate across the board. And by the way, all hardware inventions are made of existing hardware configured to do something. The cotton gin was made of a box, a comb, a hopper and a crank handle configured to do something.

yea yea box of protons. but here in the real world, novel structure does not typically arise from “configuring”, but rather from “making” and reasonable people can discern the difference.

Do you recognize this:

” We build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of our shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts. See U. S. Const., Art. I, §8, cl. 8. ”

So put up already: where are the Alice invalidations for novel hardware? Show us 0ne. A single one.

There have been some bad Alice rejections for good information inventions- I can show you some. But that’s not the point of the whining here.

You don’t really get it do you Martin? The point is selective application of Alice when there is no basis to selectively apply Alice to information processing in the law or Constitution.

Get it? Try addressing that issue. Get it? The point is that Alice could be used to invalidate the mechanical inventions too. It illustrates that Alice is a tool the SCOTUS is using to wipe patents in a particular area that they don’t like.

I know you think you are 101 expert, but you really don’t get it. The question should always be what extraordinary circumstances exist for 101 to be invoked that 102/103/112 should be abandoned.

My claim challenge is still on. I’d like to see claims that actually need 101 to invalidate them rather than 102/103/112.

Reality: information processing machines take time, energy, and space to process information. They have structure. The conservation of information is the most important law of physics. Reality.

You choose not to answer before, maybe you will now: where these “reviews” prior to your publishing of the article and were they meant to confirm any legal positions that you stake out, or were they merely made in passing post-publication of your opinion piece with NO actual vouching of any legal points within your opinion piece?

You seem to want to draw a level of “vouching” that is not – and should not – be there.

Your paper can be summed up the your quote from your paper below. Your quote is inapposite to science and patent law. The point of patent law is that functional claims should be given the scope of enablement. Elements of claims should be found in the prior art and combination arguments used. Any argument that your claim elements A, B, C are “abstract” amount to witch arguments. 112 asks if the claim is enabled. 102/103 ask if the claim is novel and nonobvious. I have yet to see a claim that needed anything but these parts of the statute to police the claim.

Your quote is exactly the opposite of what patent law and science should be. Shameful. And the quote right before this quote is equally ignorant. That old saw that all equations should be for inventing and not the invention applied before the information processing machines. The paper I wrote on 101 explained why this was no longer the case.

Quote:
In 23 years of service on the Supreme Court, Justice Potter Stewart achieved legal immortality with one legendary observation: In the obscenity case of Jacobellis v. Ohio (1964) he wrote, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

So, a new processes for sharpening Hubble images would not be eligible, if the images are posted on Instagram, but would be eligible if the sharpened images are left in memory, to be analyzed by a SETI algorithm that looks for signs of combustion in the images?

Les, the images would be sharpened prior to posting on Instagram. The consumer of the information result of the method would be the image rendering software, not a human being. If the method is novel, non-obvious and fully described, you should get a patent on it.

If the patent were for making images in visible light using a telescope in space, the information result of that method would be consumed by human beings; ineligible.

There may be limited numbers of methods that result in information consumers both human and non-human. Vegas rules; humans win the tie. Ineligible.

You said: “the images would be sharpened prior to posting on Instagram. The consumer of the information result of the method would be the image rendering software, not a human being. If the method is novel, non-obvious and fully described, you should get a patent on it. ”

Then you said, “If the patent were for making images in visible light using a telescope in space, the information result of that method would be consumed by human beings; ineligible. ”

What are you thinking here, a display device that makes the images in visible light? An eye piece? I don’t understand, new optics wouldn’t be eligible? But the displayed version would because the consumer of the information is a display driver?

What if there were no display driver, what if bits in memory directly drove LEDs in the display?

You want the insignificant post solution activity to control eligibility? Why?

You should look for the Simple Set Theory explication of the exceptions to the judicial doctrine of printed matter over on the Hricik side of the blog.

I really think that you would appreciate that explication (that both Ned and Malcolm have repeatedly refused to even try to criticize in a legally cogent manner).

It does not align fully with your “feelings” on human processing (which, by the way are not in accord with the law as written by Congress, leastwise when such human processessing is NOT the sole step in a claim), but I do think that the logic is something that you would agree to.

Les, there are two kinds of “abstract ideas”. One is intrinsic to the invention- e.g. an invention that is a method that results in information where that information is consumed by human beings.

The second is where the invention is claimed at the level of an idea, or desired result, where the improvement over the prior art is expressed as some combination of old, obvious, or not fully described elements.

Putting a telescope in space is an idea, and the information that results from that idea is for human consumption. The Hubble itself is a machine. Sharpening an image is also an idea, but a method to do that may be non-abstract if the results of the method are consumed by a non-human actor, in this case the rendering software that processes the sharping algorithms. Humans are not processing the algorithms. If the sharpened images are later shown to people, that’s not the infringing act(s).

I’m not sure where you are getting that insignificant post-solution activity would come into the inquiry as to the identity of the information consumer.

Since I don’t know the steps in the hypothetical sharpened algorithm for correcting the errors in the Hubble mirror, I am not listing the elements of the method that would be in the claim. However, please assume that there are a list of steps directed at the result of a sharpened image compensating for the manufacturing/design flaw in the mirror.

Now. Since we are talking about a telescope that doesn’t have an eye piece or a film camera, we are talking about digital images. In a reasonable world the claim would end when the sharpened data is in memory.

The abstract of your paper indicates you believe that such a claim should pass 101.

However, there are those that would allege that since there is no recitation in the claim as to how the image data is use, the claimed method is not to something useful.

Some of them post on this board.

One cure is to add an additional displaying step or printing step.

Such a step is insignificant. It occurs after the inventive method is completed.

In the world you envision, adding that step makes the claim ineligible because the display or print out are clearly for human consumption.

That seems to me to be a bizarre result of your proposal.

Any, THAT is where I am getting that insignificant post-solution activity would come into the inquiry as to the identity of the information consumer.

Another bizarre result that I think I saw in your recent post is that, if I patent my method without reciting the displaying and someone uses my method as claimed, and then displays the image, there are somehow absolved from infringing my claim….

In a reasonable world the claim would end when the sharpened data is in memory.

Yes

The abstract of your paper indicates you believe that such a claim should pass 101.

Yes

“However, there are those that would allege that since there is no recitation in the claim as to how the image data is used, the claimed method is not to something useful”.

This is why I also assert that like claim construction, a process patent must have a construed result, as a matter of law.

Sharpened images are automatically more desirable, for virtually any use, than fuzzy images. The method could very well end with a sharpened image and maintain eligibility. Doing the sharpening infringes- using a sharpened images does not.

In the physical world, if you come up with an improved process for sharpening a knife blade, there is no further utility required to be described in the claim to reach the utility requirement.

“So, in your world, if my claim recites displaying the image, or if a dependent claim recites displaying the image, those claims are not eligible, but the same claim without the displaying is?”

You got it. If the economic value of the claim arises from human consumption of the information as the infringing act, you are out of luck.

If your claim’s result is information that is useful without human consumption, or useful information that is useful prior to human consumption, have at it, so long as the requirements for patentability are met.

The most basic possible definition of “abstract” is information consumed by a person.

“So put up already: where are the Alice invalidations for novel hardware??”

That’s like arguing nuclear proliferation is good by shouting: –So put up already: when were nuclear weapons ever dropped on the U.S.? —

That’s not the issue. The issue is when you apply the Alice tests to any invention, an argument can be made that any invention fails the Alice test. This highlights the problem with the Alice test and points out why it is clearly wrong.

You have NOT been paying attention Mr. Snyder, as the Alice case itself contains your “hardware” claims, in that BOTH sides stipulated (thus NOT at issue before the Court) that some of claims MET the “hardware patent” element of the statutory category aspect of 101.

I suggest that you pay closer attention to these things. Malcolm has on numerous occasions clearly stated things like actual hard goods things are “abstract,” and I have pointed this out and tried to get Ned to realize what Malcolm has been saying (in part, because Ned is still entrenched in a 19th century, drop it on my toe, view of patent law).

As to your takeaway here of the stipulation, you are clearly not correct. Either to the stipulation, to what the stipulation means, or why the stipulation was agreed to by both sides. There just is NO “magic” other-world thing that happens with software innovation. The simple fact of the matter is that software IS a machine component and manufacture in its own right.

Artur Fischer: He came up with a synchronized mechanism that triggered the flash when the shutter was released. The device was bought by Agfa, a large camera company, and Mr. Fischer was on his way, coming up with hundreds of solutions to nagging technical problems over the next seven decades.
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So under the supreme leadership of Alice, this would be abstract now. Hindsight thinking, ignorance, arrogance, monopolies, K Street, Obama, Stern, Lemley, — all a blight to innovation.

“We believe Apple may be intentionally forcing users to use their repair services, which cost much more than most third-party repair shops. There is incentive for Apple to keep end users from finding alternative methods to fix their products. Think of it this way: let’s say you bought a car, and had your alternator replaced by a local mechanic. Under Apple’s strategy, your car would no longer start because you didn’t bring it to an official dealership. They intentionally disable your car because you tried to fix it yourself. That is wrong,” it states on its website.

Query whether Apple has a patent on the process of working around its “security feature.” Can you create the problem and simultaneously patent the method of fixing it?

On this subject, can we learn anything from the history of trade in printer ink cartridges. If you put in an unauthorised one, does it promptly crash your printer? Isn’t there a whole slew of patents in the area of “security features” in printer ink cartridges?

And how about in civil airliners? If you own one and try to “fix it yourself” might it be safer if its maker has included a “security feature” that blocks it from lifting off the ground, fully laden with passengers? Who would want that feature to be hackable?

Max, see the post to MM at 6.3. If one leases printer cartridges to folk, one can place conditions on use. But the lease has to be genuine — a running payment for use, and the obligation to return the leased property afterwards.

Except they do, all the time. We had a Dell inkjet printer. We bought a refilled cartridge not from Dell. The printer refused to work with the cartridge. We threw the printer away.

The new Keurig coffee makers read a code off the k-cups. If your k-cup does not have the code, the machine won’t make coffee.

For printer cartridges, they install software (oh my gosh!) that needs to have a certain code read by the printer or else the printer will not use the cartridge. The manufacturer then claims copyright infringement when you copy that part of the software so you can produce a replacement cartridge.

“Offering further explanation to why it thinks an iPhone should be completely disabled, Apple said that disabling the device ensures that there won’t be any unauthorised usage of Apple Pay and Touch ID.

As we learned last week, iOS 9 generates ‘Error 53’ when it detects that an iPhone has been repaired by a third-party. The issue is related to iPhone’s Touch ID sensor (which is embedded on the home button) that handles various fingerprints of a user.

When Touch ID (or any of its components) is repaired by a non-Apple representative, the system is able to detect the non-standard component. This could potentially compromise the security of the iPhone, and Apple ‘bricks’ the device completely to protect users from any abuse. ”

So, if someone replaces your Touch ID (with theirs, say), they could use your phone to make purchases (among other things).

I can’t say this is nefarious. It’s probably a stup id thing to do, at least if you’re an owner of the phone, but the reasoning behind it seems sound (even if they way Apple is handling the issue is not).

Ned: why are you appealing to the Federal Circuit cases where you have no chance and where they are not even going to give you the time a day

I believe most of the d.o.a. appeals are the result of adherance to the “sunk cost” fallacy, although some of them are brought by “true believers” addicted to pounding sand to the beat of whatever tinfoil nonsense is being shoveled at them from IPWD and similar “information sources”.

This case, arising out Judge Linares district court in NJ, was dismissed on the pleadings when the claims were deemed ineligible. (see link to law360.com)

The junk claims at issue (you probably will want to have a bucket handy; USPN 5,712,789):

1. A container monitoring system for accumulating and storing information on shipping containers including container location and container load status, the system comprising:

a receiving area for receiving containers to be monitored by the system, said receiving area within a defined boundary within which containers are to be monitored by the system,

a container entry point at the boundary at which containers are identified by pre-existing identification codes which are recorded at the container entry point,

a switching vehicle for moving containers to and from a receiving area and to and from a facility within the boundary according to instructions received from the facility, and

means for recording information on locations and load status of containers within the defined boundary.

This was probably one of the more favorable panels the patentee could have drawn but it didn’t help any.

Take home for owners of tanked patent claims: don’t waste your time and money arguing that “Alice is wrong because 1952 patent act Rehnquist Diehr whatever!” The judges — even these judges — don’t give a hoot. They’ve moved on: subject matter eligibility has teeth and Mayo and ALice aren’t going away. The judges are just going to smell the desperation and ignore you. They want to know the specific reasons that your claims pass muster and you better be ready to provide those reasons in a coherent fashion.

One such reason is certainly not that “my claim recites a non-abstract structure.” That’s an instant failure. Again: the judges are way beyond that nonsense now.

The judges are also (THANK YOU) beginning to show some awareness of the fact that subject matter eligibility comes in different flavors because (surprise!) claims can implicate ineligible subject matter in multiple different ways. One of those flavors is the use of conventional data gathering technology to gather information for information’s sake (i.e., to “appreciate the meaning of the information”), where the information comes from some field (e.g., a “baseball game” or “a shipping yard”) to which that conventional technology had not been previously applied.

Another important point that was acknowledged by the panel today that is often overlooked (see, e.g., the Enfish panel at comment 3) is that the level of specificity with which you describe the ineligible abstraction does not affect the analysis (i.e., recording the maker of the baseball bat doesn’t make your method of filling out a baseball scorecard any less ineligible). One of the judges also explored the related issue of whether an “unconventional” recording of information (e.g., recording “the pattern of stars in the night sky” during the baseball game) would change the analysis (answer: highly doubtful).

Defense attorney: “Not necessarily, not if it’s tied to something that is not an abstract idea. The issue is just that the conventional data gathering element like a hand held radio or a conventional optical scanner layered on top of an abstract idea isn’t enough for the inventive concept under step 2 [in the Mayo/Alice analysis].”

Judge (Clevenger?) : So what you’re saying I guess is that if … if you have a … your invention is a system of gathering invention and recording it, then it doesn’t matter for the purposes of patentabilility whether that occurs in a baseball field or a railyard or a container yard or any other specific application of that general practice. The specific application falls away under Alice because just because you have a specific context within which the abstract idea is being applied doesn’t make it any less abstract. [attorney agrees] I’m saying the usual sense of the word abstract which is that is that it’s other than specific. “Specificity” is not a defense to an Alice-type argument. …. There’s “specificity” [in the specification, e.g., brand names of recording devices] but your argument is that the “specificity” is conventional.

—————–

Does everybody see the “solution” for this patentee’s woes (at least, in hindsight)? I’ll help the stragglers out: non-obvious structure, described in objective stuctural terms. Put it in your claims, folks.

Sounds in 103 to the extent the new context itself is something otherwise eligible.

No doubt the claims are junk under 103 as well, provided that you wern’t born yesterday or pretending to have been born yesterday. What’s the point of wasting all the defendant’s money and limited judicial resources on that? Who in heck needs to hear some “expert” testifying on how “nobody predicted you could use computers in a shipping yard in 1995 because it was so expensive” or some other baloney? The defendant needs to pay for a jury to hear about the “commercial success” of companies that replaced a human with a computer 10 years after the application was filed, because somehow that makes the claim less obvious?

No thanks. Justice was done here and the decision will be affirmed. It’s time to celebrate. Besides, it’s the weekend.

If by unwashed masses, you mean those that do not care about context, history, meaning, or facts, and that approach the subject with their own desired Ends already in mind, then, yes, most definitely.

The reference to Sun Zzu is most definitely NOT self-referential nonsense, and the fact that you think it is only means that you have no c1ue what that reference means.

The thing is Mr. Snyder, this “lynch mob” style approach of “the populous” applies to ALL areas of law and not just patent law. Your attempted “logic” here is in error.

Let me correct you (again). I am not saying that non-lawyers cannot understand and appreciate the law. I am saying that YOU do not understand and appreciate the law.

But you are trying and you are making some progress. You just happen to lose your way when you cling to your past desired ends and try to squeeze what you are learning to fit the preordained model in your head.

Apparently courts are supposed to use 112 instead of 101 except the courts should go out of there way to find a definite construction for the patent holder even though the “limitation” is completely made up ‘gobbledygook” with no ascertainable structure.

Doing a light Saturday night reading about Mr. Tesla, and came across this prophetic piece.

(note, Malcolm would probably like to treat this bit of future foretelling as some sort of “prior art,” but I trust that all reasonable people will understand why such is just not so)

“When wireless is perfectly applied the whole earth will be converted [as in, change of state]into a huge brain [love the anthropomorphication], which in fact is, all things being particles of a real and rhythmic whole. We shall be able to communicate with one another instantly, irrespective of distance. Not only this, but through television and telephony we shall see and hear one another as perfectly as though we were face to face, despite intervening distances of thousands of miles, and the instruments [by the by,manufactures and machines – new ones at that] through which we shall be able to all of this, will fit in our vest pockets.”

MM, the “not prior art” comment struck me too as passing strange. But I see it as an artefact of a sad “all bow down” mindset that sees it as the function of society to serve “the law”. That, or the commenter has his own peculiar definition of “prior art” which he chooses not to share with us. Perhaps he is supposing that a prior disclosure of subject matter can count as 103 “prior art” only when it is enabled.

For me, it is the opposite. The law is there to serve society, to promote the welfare of society, and ii) one of the tasks (and burdens) of the judicature is always to keep in view that fundamental function of “the law”, to serve society, when it goes about its prime task, to interpret statute law. This for me explains the post-State Street correction that we are currently seeing from the judicature.

While I’m on, can you answer a question I have. I realise that, in context, the expression “common law” can mean that which is not “statute law”, and “civil law” that which is not “criminal law”. But when I use these expressions in the context of this blog, I do it to refer to one of the world’s two legal traditions, namely, “English common law” (as found in the Federal Courts of the USA and in the courts in England) and “Romano/German civil law” (as at the EPO in Munich, Germany). My question: do you think any of our lawyer readers are confused by my use in this blog of the common law/civil law terminology?

(Once again, Malcolm, here’s a hint: star trek and my big box of protons, neutrons, and electrons would make EVERYTHING obvious by your logic – that’s why it is so delicious to post that slap of you and watch you “not get it”)

MaxDrei, oddly, you then go onto construct one very large strawman in an attempted conflation between statutory law and common law (and then ask the Queen of Straw on this blog for advice…. maybe it’s more of that “celebrating demolishing” thing you are addicted to…)

Any reference that can be used as evidence of the motivations and desires and scientific understanding of an ordinary artisan at the time of filing is prior art, at least for those purposes.

But go ahead and keep pretending otherwise! It’s likely that what you’d really like your fellow kool-aid drinking software patent-worshipping sycophants to believe is that prior art is limited to the b.s. that is “enabled” in granted patents. Meanwhile, you continue to press your functionally claimed junk on the public and threaten to sue the skilled people who actually write software that works without crashing (before it doesn’t and needs to be re-written again).

(and notoriously, my Big Box of Protons, Neutrons, and electrons is straight out of the science fiction of Star Trek – OOPS on your part as you would now have it that the replicator makes ALL manufactures “obvious” – way to stick that fork into your own eye)
The rest of your AccuseOthersOfThatWhichMalcolmDoes mantra is just your usual short script C R P.

Sycphant? LOL – that would be your MaxDrei,
Functionally claimed? LOL – that would be the Vast Middle Ground PERFECTLY legal option under the law as written by Congress.

The other 101 case argued today also arose from a summary judgment against the patentee — this one, surprisingly, in Judge Gilstrap’s courtroom. Maybe it’s a tad less surprising when you see the claims …

61. A computer implemented method of generating a customized proposal for selling equipment to particular customers, the method comprising the steps of:

a) receiving in the conjurer information identifying a customer’s desired equipment features and uses, by

presenting the customer with a plurality of questions relating to features and uses of the equipment, and

receiving in the computer a plurality of answers to the questions, the answers specifying the customer’s desired equipment features and uses;

Gilstrap: “The claims essentially propose that, instead of a human salesman asking customers about their preferences and then creating a brochure from a binder of product pictures and text and using a rolodex to store customer information, a generic computer can perform those functions.”

There’s nothing inaccurate about Gilstrap’s characterization. Nevertheless, the patentee’s attorney asserts right off the bat that the characterization is “very far afield” (that would be a sanctionable assertion, if I was a judge, but we know how the game is played).

The patentee’s attorney also attempts to create substance out of the terms “automatically” (a non-starter), and “dynamic building”. He asserts that this makes for a “better product” … but fails to explain exactly what two products he’s comparing (oops — let’s pretend that we’re all too ign0rant to notice).

The patentee’s attorney also suggests that nobody in the prior art ever prepared a new image from separate old images (e.g., taking a picture of a car and placing that picture in front of a picture of some backdrop (e.g., a stage or a beach), as opposed to photographing or painting a new picture from scratch. Was he born yesterday? Of course he was.

As Gilstrap noted and everyone on this panel seems to be aware, the claim covers not only situations where there are zillions of options in play but also the situation where the options are finite. In other words, yes, certain applications falling within the scope of this super shiny “do it on a computer’ functionality might be complex and impressive and beyond what a human hand could have achieved in a reasonable length of time, but the claim also covers the most basic propositions at an abstract level.

The attorney for the defense does attempt to make one erroneous argument which is that ‘101 and 102/103 are totally different analysis.” She’s immediately corrected on that point by one of the judges (Taranto) because in many proper 101 eligibility analyses (but not all) a comparison of the claim to the prior art is essential.

Lastly, there is the fact that the CAFC apparently saw these junk claims pre-Alice and pre-Mayo and somehow managed to find them non-obvious. That’s embarassing for the CAFC. It’s also embarassing for the folks who insist that “103 is good enough” because these junk claims went down hard and they aren’t getting up again.

I predict this one will end up with a Rule 36 affirmation. An opinion explaining why won’t be worth the effort.

So, two judges Hughes and Taranto who were selected, vetted, and approved by Google prior to Obama’s appointment and neither of whom are qualified to sit on the Fed. Cir. destroy the patent system in accordance with Google’s wishes. Travesty. Neither one has a science background and could even begin to understand information processing. Both need to be removed.

He is very much afraid that any type of critical thinking will show the underlying issue here is that the scoreboard is broken, and that instead of the proper means of changing statutory law that is patent law (through the legislative branch), he wants a short cut through the judicial branch.

In fear, he reacts only with his short script of baseless ad hominem. Remove that ad hominem, and you will see that he has LONG said nothing of any consequence on these boards.

Meanwhile, today at the Federal Circuit the surreal farce surrounding the patenting of logic continues. The CAFC desperately wants to know whether “a new table” is eligible subject matter. Who better to ask than a patent tr0ll and the willfully blind attorney from Microsoft, one of the tr0ll’s deep-pocketed litigation targets?

17. A data storage and retrieval system for a computer memory, comprising:

means for configuring said memory according to a logical table, said logical table including:

a plurality of logical rows, each said logical row including an object identification number (OID) to identify each said logical row, each said logical row corresponding to a record of information;

a plurality of logical columns intersecting said plurality of logical rows to define a plurality of logical cells, each said logical column including an OID to identify each said logical column; and

means for indexing data stored in said table.

Both parties appear to agree that the alleged invention is a table that includes at least one instance of “self referentiality” — on a computer!

The question before the CAFC which they would prefer to dance around rather than address directly: are logic abstractions such as new rules for organizing information (e.g., new tables), which were never before considered eligible in the history of the US patent system, suddenly eligible “because computers”?

Let’s enjoy the dance which follows (spoiler alert #1: you’ve seen this one before)!

To begin, the Enfish attorney makes the usual mistake of conflating abstractness with narrowness (spoiler alert #2: he’s not the only one who will make this mistake): “If the district judge had characterized the claim as a claim to “a single table self referential database” there would have been no need to move to Mayo step 2.” [<– LOL — it's not possible to be more wrong — great start to the argument!]

Enfish: (Even if the district court’s characterization was accepted) “at step 2 the court should have but failed to grapple with the single table self referential data structure.” [news flash: abstract rules for organizing information do not qualify as "structures" in the context of sane patent system; another news flash: referring endlessly to logic and rules as "structures" does not magically change that logic and those rules into physical structures]

Enfish doesn’t dispute that people have been organizing tables using header rows for thousands of years. Enfish, of course, doesn’t bother to explain why — given that undisputed fact — numerous applicants haven’t rushed to the PTO to patent “new table structures” until rather recently in the history of system.

At around 14 minutes into the argument we finally get into the farcical dance where the CAFC starts from the assumption that some kinds of functionally claimed computer logic just must be eligible and the only question is how to describe that kind in a manner that doesn’t seem arbitrary (pretty sure this is an impossible task at the end of the day but, hey, let’s pretend otherwise because $$$$$$ talks and who cares about the health of the patent system really).

[what follows is a subsantially complete transcript of the back and forth with the MS attorney]

Question from judge (Hughes): If I was the first to “innovate” the relational database and I described it in a fair degree of detail, could I get a patent on it?

[historical note: the “complete” concept of relational databases is widely credited to EF Codd of IBM; the concept was never patented, nor was a patent applied for; Codd, of course, defined his data management system as a set of rules governing the logic used to manage data within the system; Codd never became sooper dooper rich like Larry Ellison which is one of the greatest tragedies in US business history]

MS Attorney non-answer: “It would certainly be a very different case from this one.”

Judge Taranto: “I at least need a better answer than that. You know that there is tremendous uncertainty about what constitutes an abstract idea. Most of our cases and all of the Supreme Court cases have been about objects of the claims that are easily distinguished from this one. The object of this claim is a kind of software improvement to computer functionality. It is something like a fresh question for us. I need help in understanding how to think about the Supreme Court abstract idea concept when the whole point from beginning to end of the claim is an improved internal process in the computer using completely old hardware.”

MS Attorney: “Um … I would take the court to the Versata case. In that case [starts to explain]…”

Judge Taranto: “Right, yeah, but see that’s one of the cases like all of our post-Alice cases where it’s perfectly easy to say that the object of the claim is the creation of legal intangibles — which is contractual relationships to people. We don’t have that. So I’d like to put those cases aside. I don’t think — tell me if I’m wrong — that we don’t have a case that is specifically about internal … internally [sic] processes of a computer using old hardware that make the computer function better.”

MS Attorney: “With respect I’d still the court to look at Versata and claim 17 ….”

Judge Hughes: “But Versata is basically a business method that could have been taught on the street. … I agree with Judge Taranto that case is of very little relevance…. That’s why I asked you about relational databases … where those are something specific to the computer world that are novel and patentable … These types of databases I don’t see as having been done prior to the computer world. So … can you give me another try at one? So, if have you have the prior art relational databases, and not in some very general sense of using tables with tabs and columns on a computer — because that seems abstract to me — but defined in a certain way — “X number of databases working relationally in a certain way” — the way the prior art works — why wouldn’t that be patent eligible?”

MS Attorney: “If we had a relational database and you were claiming the relational database techniques, you would be far less abstract than the claims are here. And if I could just have the court indulge just one comparison to relational databases and the claims here it would be this: the claims and the specification teaches that the benefit of the invention here is to leave all of the relational database rules aside. Instead of having many tables where you try to claim like [i.e. similar] things together you are supposed to throw everything into a single table, a single logical table — any kind of record can go in there, and therefore it’s going to be a sparse matrix, you’re not going to try pack everything in like a relational database would …”

MS Attorney: “The specification suggests it’s different from a relational database … and the question we think this is the critical question: is that teaching part of the claims? We suggest that the answer is ‘no’ for two reasons.”

Judge Hughes: “Well you can answer that but I’m not sure I’m going to agree with you on that. It seems there’s enough in the “self-referentiality” ….”

MS Atttorney: [irrelevant hooey deleted]

Judge Hughes: “This doesn’t sound at all like a 101 argument to me.”

MS Attorney: [more irrelevance]

Judge Hughes: [interrupts] “Okay this is not being very helpful to me. So let’s just assume I don’t agree with your reading of the claims. I find that the claims specifically incorporate one database with self-referentiality. Why isn’t that a new database that is patent eligible under 101?”

MS Attorney: “The question then becomes, with that assumption, what are you asking the computer — which is admittedly generic — to do. And here the computer is being asked to do things that people can do. A person could take data and organize it into two columns and two rows and have those rows be self-referential in the manner in which the claim is taught and therefore the claim is abstract.”

[news flash: whether “humans can do it” is really not the key issue, although courts have let themselves be confused by that for many years; the point is that it’s logic applied to data and humans are doing it. They do it with old machines that were designed specifically for that purpose, i.e., applying rules to data]

Judge Hughes: “I get that. I see … and I do think that like Versata and some of those cases if all you do is take some kind of method that’s done and ‘do it on a computer because it works faster and better’ then that’s ineligible. And I see some aspect of that here but I also I see your friend’s argument that this doesn’t just do that. It improves the way the computer itself operates — it takes less memory, it makes the database work better. To me it’s not solely the case about taking something and do it on a computer, it makes the computer work better, too.

[there’s nothing like reciting the self-serving boilerplate out of the specification as if it were a universal fact — way to go, judge!]

Judge Hughes: I still don’t understand — assuming I read the claims in a more specific way than you do, why that’s not enough under Alice because the brunt of your argument leads me to the suggestion that computer software is just not patentable at all.

[Oh noes! The third rail! Don’t touch it!]

MS Attorney: That is not our position ….

Judge Hughes: Let me ask you this hypothetical then. Do you think the invention in the specification would be patentable if claimed properly?

MS Attorney: If claimed properly, you certainly could have a patent …

Judge Taranto: How would you do it here?

MS Attorney: You could start, first, by claiming exactly what was taught in the specification. That would be a good start. And you would need to get to something that … you would need to claim the invention from the point of view of what was different and new that made the computer better, faster, and stronger, instead of claiming something that a person could do outside the context of a general purpose computer. That would make a difference. It makes a difference under the court’s precedents. And here, again, the specification teaches something: it suggests that you are going to get benefits if you have a single very large table. The patent claims just talk about a computer and “a table”, which could be “one or more” — you might follow the requirements of the claim limitations for one of your tables and not for others and therefore miss the benefits entirely. The claims reach that far because they are drafted in an abstract way and that’s what leads us into the Alice problem.

[oy; this isn’t a “drafting problem”]

And so the farce will continue. Maybe when the Supreme Court finds itself debating the eligibility of a method for “using rules” to decide whether a computer-animated mouth stays shut when it’s humming they’ll finally do the right thing and pull the plug. We can only hope.

The hardware computer elements are all old. Here the programs create and use physical media formatted as a system of tables that uses an OID in both rows and columns.

The novelty the use of an OID in two locations. An OID is useful because of its pattern, not necessarily its meaning.

Now, printed matter would clearly apply if meaning were important here. But that is not the case, is it?

Now consider Morse claim 5, a system of signs. The signs were marks and spaces, initially on a moving paper written there by a machine in response to opening and closing circuits. But the system of signs itself was a pattern, a physical pattern. Held: patentable.

The OID is a physical pattern when recorded, so by itself, that is sufficient to be eligible.

As to rows and columns? These seem logical. There does not seem any requirement to map these rows and columns physically to anything. However, whether something is a row or a column also really depends upon an ID, another pattern, another physical pattern.

You see where I am going here: all of this is physical and none of it requires the meaning of anything.

You are so close (and yet, so far) from a proper understanding with the Morse case and the marks and spaces.

May I remind you that software is not the thought of software?

Do you understand why I remind you of this distinction?

Do you also wonder why software can earn a copyright for a certain aspect of that man-made manufacture, and what that ability means when taken in context of your choice of words here (“implemented in a physical…)?

anon, the system of marks and spaces was patented, not the particular code. It made absolutely no difference at all that the infringer was using a different code because they were using the same system of marks and spaces.

Notice the code itself means something – three dots might mean S, for example. But Morse did not even attempt to patent the code only the system of marks and spaces. So O’Reilly Morse does not stand for the proposition that one can patent either a code or by extension an alphabet. Morse provides no support that computer code, which although may be physical, varies from prior computer code only in its meaning, is patentable subject matter based upon O’Reilly v. Morse.

There is definitely an over-reliance on this notion of “unexpected results.”

Not surprisingly, this mistake can be tied to a fundamental misunderstanding of 103 – and stems from the history of 103 as directly flowing from the 1952 Act and the (re)action of Congress to an anti-patent Supreme Court.

If one is inte11ectaully honest, one can see that that logic leads directly to the “Genius or Oops” paradigm.

As I have mentioned, this paradigm simply cannot stand for what the patent system – as put together by the appropriate branch of the government – the legislature – must stand for. Explicitly, Flash of Genius was directly repudiated, and there is no sense whatsoever to the notion of captured for promotion for the Oopsie type of advance.

The Apple patent was challenged by an LLC that is owned individual that apparently has no connection to Samsung; but the patent was asserted by Apple against Samsung, was held infringed and not invalid and damages were awarded to the extent of several hundred million dollars.

We know that IPRs might be settled and result in a dismissal. One would think that this will be eventual result here.

This case, and the other cases involving Kyle Bass, a short seller who files IPRs to profit from these fall and stock prices, illustrates that there needs to be some standing requirement to invoke any post-Grant review.

2. A computer-implemented method, comprising: at a portable electronic device with a touch screen display; displaying at least a portion of a structured electronic document on the touch screen display, wherein the structured electronic document comprises a plurality of boxes of content; detecting a first gesture at a location on the displayed portion of the structured electronic document; determining a first box in the plurality of boxes at the location of the first gesture; enlarging and translating the structured electronic document so that the first box is substantially centered on the touch screen display; while the first box is enlarged, a second gesture is detected on a second box other than the first box; and in response to detecting the second gesture, the structured electronic document is translated so that the second box is substantially centered on the touch screen display.

United States Patent 7864163, from Apple. You know, a company that’s not a non practic ing entity and actually makes things.

Abstract idea: A technique for centering and enlarging a part of an electronic document using multiple boxes on a touch screen of a portable electronic device.

Significantly more: All other claimed elements are purely conventional (they’re simply generic computer functions). They do not improve the functioning of the computer itself. They do not effect an improvement in any other technology or technical field.

Instead, the claims at issue amount to “nothing significantly more” than an instruction to apply the abstract idea of the technique using some unspecified, generic computer.

Take THAT, Apple!

All you have to do is wrap up as much as you can into the “abstract idea”, as this leaves very little left to be something “significantly more” than the “abstract idea” itself.

You say one thing, but mean the opposite – this of course is your unexplained dichotomy of whining ever so much about onepercenters and yet do not want to provide protection for the form of innovation MOST accessible by everyone.

(try having a better position, or F A I L ing that, try reading better)